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NORTHEAST WOMEN'S CTR., INC. v. MCMONAGLE

June 8, 1987

Northeast Women's Center, Inc.
v.
Michael McMonagle, Dennis Sadler, Deborah Baker, Thomas Herlihy, Anne Knorr, Robert Moran, Joseph P. Wall, Roland Markum, Howard Walton, Henry Tenaglio, Stephanie Morello, Annemarie Breen, Ellen Jones, Susan Silcox, Paul C. Armes, Walter G. Gies, John J. O'Brien, Patricia Walton, Kathy Long, Helen Gaydos, Donna Andracavage, Juan Guerra, Margaret Caponi, Mary Bryne, Linda Corbett, Thomas McIlhenny, and Patricia McNamara



The opinion of the court was delivered by: KELLY

 KELLY, J.

 The plaintiff Northeast Women's Center, Inc. ("Center") is a Pennsylvania corporation engaged in the business of providing pregnancy testing, gynecological care, counseling, and abortion procedures at a facility in Northeast Philadelphia. The defendants *fn1" are anti-abortion activists who have participated in various protest activities both outside and inside the Center. As a consequence of these protest activities, the plaintiff brought this civil action seeking money damages and injunctive relief under the Sherman Antitrust Act, 15 U.S.C. §§ 1, 15; the Racketeer Influenced and Corrupt Organizations Act ("RICO") 18 U.S.C. § 1964(c); and the common law torts of trespass and intentional interference with contractual relations.

 At the close of eleven days of testimony, the court directed the verdict on the plaintiff's antitrust count. Northeast Women's Center, Inc. v. McMonagle, No. 85-4845, slip op. (E.D. Pa. May 8, 1987). The RICO, trespass, and interference with contract claims were then sent to the jury. Following four days of deliberations, the jury returned its verdict. The jury found all twenty-seven remaining defendants liable under RICO and assessed $ 887 in damages. The jury found twenty-four of the defendants liable for trespass and assessed $ 42,087.95 in compensatory damages and $ 48,000 in punitive damages. The jury found that three defendants had interfered with the Center's employee contracts, but determined that the Center had sustained no proximate loss as a result. Thus, the jury awarded no damages on the interference with contract claim.

 The court now addresses the plaintiff's petition for a permanent injunction and the defendants' motion for judgment notwithstanding the verdict. In accordance with the jury's answers to special interrogatories and the rulings of this Memorandum, a complete entry of judgment is attached.

 I. PERMANENT INJUNCTION

 A. Consolidation with Trial on Merits

 The original complaint in this action was filed on August 20, 1985. On May 27, 1986, the plaintiff moved for a temporary restraining order and/or preliminary injunction to restrain the defendants' protest activities at the Center. The court conducted a two-day evidentiary hearing on the plaintiff's motion on June 3-4, 1986. On June 12, 1986, the court issued its decision denying the injunction. In the accompanying Memorandum, the court explained that the plaintiff had failed to demonstrate irreparable harm and had been unable to prove that its probability of succeeding on the federal claims was strong. Northeast Women's Center, Inc. v. McMonagle, No. 85-4845, slip op. (E.D. Pa. June 12, 1986).

 The plaintiff appealed this ruling to the United States Court of Appeals for the Third Circuit. On appeal, the Third Circuit vacated the June 12 Order, holding that the Order failed to specifically articulate the findings of fact as required by Federal Rule of Civil Procedure 52(a). Northeast Women's Center, Inc. v. McMonagle, 813 F.2d 53, 54 (3d Cir. 1987). The Third Circuit remanded the matter to this court with instructions to specifically set forth its findings of fact. However, the Third Circuit suggested, "in the strongest possible terms, that instead of seeking the court's compliance with our mandate, the parties agree to convert the action into a final injunction hearing." Id. at 54-55. The parties reached such an agreement during a pre-trial conference in early March 1987 and the injunction hearing was consolidated with the trial on the merits scheduled to begin in April 1987. See Fed. R. Civ. P. 65(a)(2); University of Texas v. Camenisch, 451 U.S. 390, 68 L. Ed. 2d 175, 101 S. Ct. 1830 (1981).

 B. Preliminary Objections

 In opposing the plaintiff's petition, the defendants raise two preliminary objections challenging the court's authority to issue an injunction. First, the defendants contend that the plaintiff's petition is precluded by the doctrine of collateral estoppel. Second, the defendants assert that equity cannot enjoin the commission of criminal offenses. The court finds no merit to either objection.

 1. Collateral Estoppel

 The defendants note that the Center has twice before sought, and been granted, injunctions limiting protest activities outside its facility. They have introduced into evidence copies of both injunctions. The first, issued on December 23, 1977 by Philadelphia Common Pleas Court Judge Harry Takiff, was entered against "defendants Jean Neary, shareholders, officers, employees, and members of the corporation known as Save Our Unborn Lives ('SOUL'), individuals identified as members of or participants with the group or association known as 'Shield of Roses', and all other persons acting under, by, through, or in concert with them and any of them." Northeast Women's Center, Inc. v. Save Our Unborn Lives, No. 5700, May 1977 Term, slip op. at 3 (C.P. Phila. County Dec. 23, 1977) (introduced as "C-1"). The injunction enjoined any trespass onto the plaintiff's 9600 Roosevelt Boulevard premises, any obstruction of an adjacent or continuous public sidewalk or street, and any nearby use of a sound amplification device or recording. Id.

 A second injunction was issued by Judge Takiff on August 31, 1983. This injunction was also entered against Jean Neary, SOUL, "and all other persons acting under, by, through, or in concert with them and any of them." Northeast Women's Center, Inc. v. Save Our Unborn Lives, No. 5688, July 1983 Term, Order at 1 (C.P. Phila. County Aug. 31, 1983) (introduced as "C-2"). This second Order also concerned the 9600 Roosevelt Boulevard premises. In addition to the restrictions listed in the first injunction, the August 1983 Order enjoined the presence of more than six defendants at one time, instructing the six to "at all times remain in motion in single file, at a distance of no less than five (5) feet apart from each other." Id. at para. 2. The Order also enjoined the use of "any abusive or threatening language", id. at para. 3, and the erection of any "stationary signs or other physical objects on the private walkways, driveways or parking lots," id. at para. 6.

 The doctrine of collateral estoppel precludes the relitigation of an issue already resolved. It effectuates the public policy that there be an end to litigation, "that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Iowa State Traveling Men's Ass'n., 283 U.S. 522, 525, 75 L. Ed. 1244, 51 S. Ct. 517 (1931). Collateral estoppel, however, will not preclude the relitigation of an issue unless that issue is identical to one presented and resolved in a prior lawsuit. Public Serv. Mut. Ins. Co. v. Cohen, 616 F.2d 704, 707 (3d Cir. 1980). Giving the state court resolution of the plaintiff's injunction requests the broadest and most decisive effect possible, collateral estoppel is still not implicated in this case. The issues before Judge Takiff are clearly distinct from those presented here.

 First, the most recent state court Order was issued more than a year before the first trespassory entry occurred at the Center on December 8, 1984. This novel mode of protest was evidently not before Judge Takiff. Even in the event the plaintiff had appeared to argue its case in 1983 and had been soundly defeated on the merits, the unlawful entries were certainly new developments creating for the plaintiff a new right of action. Second, by their terms both injunctions related exclusively to the plaintiff's facility at 9600 Roosevelt Boulevard. When the plaintiff moved to its new site off Comly Road, it left the protection of the Takiff Orders. Absent a modification or amendment by Judge Takiff, the prior injunctions would have done nothing to enjoin the protesters' conduct at Comly Road. Finally, the defendants have made no attempt to analogize their conduct at Comly Road with the activities enjoined at 9600 Roosevelt Boulevard. The evidence at trial suggested that the protest activities grew more spirited, dynamic, and boisterous in recent years. Consequently, the increasing intensity of the protests would have entitled the plaintiff to a third injunction petition.

 2. Equity's Power to Enjoin Criminal Offenses

 The defendants correctly quote the Supreme Court of Pennsylvania that "it is well established that equity will not act merely to enjoin the commission of a crime . . . ." Commonwealth ex rel. Costa v. Boley, 441 Pa. 495, 272 A.2d 905, 908 (1971). However, through what the court trusts was inadvertent oversight, *fn2" the defendants neglected to quote the end of the supreme court's sentence. In full, the statement reads: "It is well established that equity will not act merely to enjoin the commission of a crime, although the criminal nature of defendant's conduct will not bar equity from assuming jurisdiction if that conduct has interfered with plaintiff's individual property rights." Id.; accord Pennsylvania Soc'y for Prevention of Cruelty to Animals v. Bravo Enter., Inc., 428 Pa. 350, 237 A.2d 342, 347 (1968). Because the proper and complete quotation of the supreme court eviscerates the defendants' objection, no further analysis is required.

 C. Requirements for Permanent Injunction

 In order for a permanent injunction to issue, the plaintiff must satisfy three requirements. First, the plaintiff must demonstrate that the court's exercise of equity jurisdiction is proper. Younger v. Harris, 401 U.S. 37, 43-44, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Second, the plaintiff must actually succeed on the merits of its claims. Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., 747 F.2d 844, 850 (3d Cir. 1984), cert. denied, 471 U.S. 1137, 86 L. Ed. 2d 696, 105 S. Ct. 2678 (1985). Third, the plaintiff must show that the balance of equities tips in favor of injunctive relief. Id.

 If an injunction should issue, the court has wide discretion in fashioning an appropriate remedy. Consumer Party v. Davis, 778 F.2d 140, 146 (3d Cir. 1985). But this discretion is constrained by precautionary considerations. The injunction that issues may not be drawn to enjoin all conceivable breaches of the law; it must instead be carefully tailored to remedy only the specific harms shown. Davis v. Romney, 490 F.2d 1360, 1370 (3d Cir. 1974). It may be no broader than is necessary to restrain the unlawful conduct. Educational Testing Serv. v. Katzman, 793 F.2d 533, 545 (3d Cir. 1986). The injunction, as drafted, should constitute "the least intrusive remedy that will still be effective." Ruiz v. Estelle, 679 F.2d 1115, 1145 (5th Cir.) aff'd in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S. Ct. 1438, 75 L. Ed. 2d 795 (1983).

 1. Equity Jurisdiction

 The threshold hurdle for a permanent injunction requires that the plaintiff establish that its request would constitute a proper exercise of the court's equitable jurisdiction. Equity jurisdiction is proper if (1) the plaintiff has no adequate legal remedy, (2) the threatened injury is real, not imagined, and (3) no equitable defenses preclude jurisdiction. 11 C. Wright & A. Miller, Federal Practice and Procedure, §§ 2942-44 (1973).

 It is a "basic doctrine of equity jurisprudence that courts of equity should not act . . . when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." *fn3" Younger, 401 U.S. at 43-44. The legal remedy is inadequate if the plaintiff's injury is a continuing one, where the best available remedy at law would relegate the plaintiff to filing a separate claim for damages each time it is injured anew. 11 Wright & Miller, at § 2944, at 398.

 In its role as a court of equity and as required by Federal Rule of Civil Procedure 52(a), the court finds the following facts specially. The evidence adduced at trial demonstrated that the defendants have appeared regularly at the sites of the Northeast Women's Center to protest. Each of the twenty-four defendants found liable for trespass had entered the premises of the Center on at least one and as many as three occasions. On none of the trespass dates had the Center willingly permitted the defendants to enter the premises. The defendants are motivated by a vibrant and unwaveringly view that the practice of abortion is a heinous evil that cannot be endured. The spirited nature of their views permits no remorse or regret for their actions. No evidence produced at trial suggests that their unlawful modes of protest will cease. In fact, the evidence suggests precisely the opposite. The pendency of this lawsuit has not deterred the defendants from unlawful protest activities. Since this suit was filed in August 1985, each of the twenty-four trespassers has been present at the Center when illegal entries were made and nineteen of the twenty-four have actually entered the premises. Since the move to Comly Road in June 1986, the Center has been the site of at least one attempted illegal entry, thwarted only by the installation of sophisticated security equipment.

 When an injunction is sought to enjoin a threatened injury, the injury feared must be real, not imagined. "The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat. . . ." Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969). See also Association of Professional Eng'g Personnel v. Radio Corp. of America, 183 F. Supp. 834, 839 (D.N.J. 1960), ...


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